J &amp H copies
confidential medical records for its customers and maintains an internet web
site they can access. EZ Copy was its competitor.

EZ Copy hired Pinnica
Corporation to assist in EZ Copy’s web site design. All parties agreed that Pinnica
employee Daniel Johnson hacked into J &amp H’s web site and rigged it so that
anyone accessing it would find a nearly-blank screen with a short, profane rant
saying, among other things, that it was “the easiest hack ever.”

J &amp H’s attorney, Jay
Coggan, told the MetNews that the motivation was to scare J &amp H’s customers
into believing that their confidential files would not be secure on J &amp H’s
site.

Johnson had no prior
relationship with J &amp H, while there was “ill will” between J &amp H and
Holman, the parties agreed. There was also evidence that prior to the hacking,
Holman had expressed a desire to harm J &amp H, and asked Johnson: “is there
something that you can do to get into their website?”

Almost immediately after
the hacking, another employee of EZ Copy contacted a mutual customer of both J
&amp
H and EZ Copy, to spread word of J &amp H’s security breach — before J
&amp
H itself was even aware of the problem, evidence showed.

Johnson allegedly wrote
an e-mail to others at Pinnica, saying:

“I know what I did . . .
.

“I don’t need to hear
what repercussions may or may not result from what I did. I did what I did
because of my own personal feelings and not because of anything our client
said. I don’t need to hear what you may have to say. I have the repercussions
from my personal life to deal with and the thought of the current
investigations are enough. [E]ither you want to fire me or not . . . either way
I accept your decision and am not going to argue it . . .”

Johnson committed
suicide shortly thereafter.

J &amp H sued Pinnica, EZ
Copy and Holman, alleging that Holman and Johnson conspired to hack into its
web site. EZ Copy and Holman moved for summary judgment, arguing that J &amp H
lacked sufficient evidence to support its conspiracy allegation.

In granting the motion,
Judge Johnson said:

“Well, there’s no
question that . . . the dots connect. I don’t have any problem with that. It
smells. It smells to high heaven. . . .”

But Johnson said he was
“looking for some act in furtherance of a conspiracy.”

He reasoned that
evidence that Holman expressed to Johnson his desire to “f—- that company up,”
and then immediately asked him “is there something that you can do to get into
their website?,” established only that Holman might have “planted the seed,”
but was insufficient to impose conspiracy liability.

On appeal J &amp H
argued that the evidence that Holman asked Johnson directly if he could “get
into” J &amp H’s website — followed shortly thereafter by Johnson doing that
very thing — was sufficient to support the conclusion that Johnson’s act was
the product of a conspiracy.

Justice William W. Bedsworth,
writing for Div. Three, agreed, saying:

“A conspiracy to commit
a tort is, by its nature, secretive it would be unusual — and highly
counterproductive — for the parties involved in such an arrangement to openly
acknowledge their participation in the scheme. As a consequence, the existence
of a conspiracy is typically established through inferences — conclusions drawn
from surrounding facts and circumstances, including the relationships among the
alleged members and between them and their target.”

Bedsworth explained:

“In this case, the
involvement of Holman and EZ Copy would be a ‘mere possibility’ if all we knew
was that Holman was hostile toward J &amp H, but had no evidence linking
either him or EZ Copy to Johnson or the actual hacking incident. But here, such
evidence is abundant. As the trial court itself put it, ‘the dots connect.’”

Coggan said Holman and J
&amp
H owner Dale Holden grew up together, and Holman worked for Holden before
starting his own business. He said he couldn’t speculate what led Johnson to
commit suicide, but said it happened shortly after the FBI started
investigating and seized Pinnica’s computers.